Argument preview: Who, exactly, is “the legislature”?

Posted Fri, February 27th, 2015 12:54 pm by Lyle Denniston

At 10 a.m. Monday, the Supreme Court will hear one hour of oral argument on the power of voters to take away from state legislatures the task of drawing new election district maps. In Arizona State Legislature v. Arizona Independent Redistricting Commission, the lawmakers will be represented by Paul D. Clement of the Washington, D.C., law firm of Bancroft PLLC, with thirty minutes of time. Dividing time on the other side will be Eric J. Feigin, an assistant to the U.S. Solicitor General, representing the federal government as an amicus supporting the redistricting commission, and Seth P. Waxman of the Washington, D.C., office ofWilmer Cutler Pickering Hale & Dorr, speaking for the commission. Feigin will have ten minutes of time and Waxman, twenty.

Background

From time to time, at least since 1898, the people in America’s states have decided to take government into their own hands, withdrawing it from elected politicians when the voters think they have done the job badly, or not at all. “Direct democracy” has cycles of popularity, and may be in a new one now, as political polarization spreads worry that elected lawmakers think party first and public good second. The Supreme Court looks into such a reclaiming of people power next week.

No act of government is more partisan these days, it seems, than the redistricting process — that is, the drawing of new election district boundaries, usually to take account of population growth or shifts as measured in each national census. When Republicans are in power, they craft districts in their favor, and the Democrats do exactly the same when they hold power. As a result, fewer districts are actually competitive at election time. The Supreme Court has been asked several times to put some limits on “partisan gerrymandering,” but has refused each time.

Now, the Court confronts an alternative approach in Arizona — a state that has been making regular use of “direct democracy” since even before it was admitted to the Union in 1912. From statehood until 2000, the state legislature had the authority under the state constitution to draw congressional district boundaries, subject to the governor’s veto.

But in 2000, Arizona voters approved Proposition 106, an amendment to the state constitution It assigned the task of redistricting congressional seats to a new independent redistricting commission, with five members.

The legislature was not cut entirely out of the process, but its role was limited to picking four of the five commission members (from a list given to them by a state judge-nominating commission) and commenting, if it wished to do so, on maps produced by the redistricting panel. (The fifth member of the panel, its chairman, was chosen by the other four members, picking from the same nominee list.)

Once the commission has drawn new maps for electing Arizona’s members of the U.S. House of Representatives (the state now has nine seats there), it sends them to the Arizona secretary of state, and then considers public comment and input from the legislature before finalizing the plans. After the 2010 census, the commission drew up a new plan, to remain in effect until the next round of redistricting after the 2020 census.

In June 2012, after the commission had finished its work, the state legislature — suing as a body rather than as individual lawmakers — filed a constitutional challenge in federal court, relying on the Elections Clause found in Article I, Section 4, of the Constitution. That section provides that “the Times, Places and Manner of holding elections for . . . Representatives [in the House] shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by law make or alter such regulations.”

A federal law which implements that provision says that, after seats are divided up among the states after a census, redistricting is to be done “in the manner provided by the law” of that state.

Because federal law provides that congressional redistricting lawsuits are to be decided by a special kind of federal court, the legislature’s lawsuit went before a three-judge district court. That panel, splitting two to one, rejected the challenge, essentially ruling that the Supreme Court had already settled the issue in two prior decisions.

In a 1916 decision, in Ohio ex. rel. Davis v. Hildebrandt, the Court upheld a voter-approved disapproval of a congressional redistrict plan drawn up by the state legislature, concluding that the referendum process was a part of state legislating within the meaning of the Elections Clause. In a 1932 decision, in Smiley v. Holm, the Court upheld a veto by the Minnesota governor of a House redistricting plan framed by the state legislature. declaring that the Elections Clause only requires that the job be done by the method each state chooses.

The legislature took the case directly to the Supreme Court (such direct appeals from three-judge trial courts are allowed by federal law). The appeal (technically, a jurisdictional statement) asked a single question: whether Proposition 106 “divests the Arizona Legislature of any authority to prescribe congressional district lines” violated the Elections Clause.

The lawmakers argued that the word “legislature” has a clear and definite meaning. The redistricting commission answered, urging the Justices to summarily uphold the district court ruling or dismiss the appeal for lack of jurisdiction.

On October 2, the Court agreed to review the case. It said it would decide later whether it did have jurisdiction, and it otherwise limited its review to two questions: does the Elections Clause or the implementing federal law allow a state to use a commission to do congressional redistricting, and does the Arizona legislature have the legal right (“standing”) to file its lawsuit. The district court in this case found no problem with the legislature’s “standing” to sue.

Briefs on the merits

The Arizona legislature’s merits brief first took on the “standing” issue (which is key to whether the Court has jurisdiction to decide the case). It argued that the legislature has been “completely deprived” of a power that the Constitution “explicitly conferred” upon the legislature, as such, which amounts to a constitutional injury that the courts can remedy. The Elections Clause, it argued, refers to “the ordinary legislative process.”

On whether the Elections Clause has been violated, the Arizona lawmakers said that the term “legislature” as used in that provision “is clear and explicit and has an unambiguous meaning repeatedly recognized by the Framers and this Court: the representative lawmaking body of a state.” The Framers, it added, were intent on creating a “representative democracy — government through elected representatives.”

Giving states “unbridled control” over federal elections would not square with the notion of representative democracy, the brief argued.

The brief dismissed the two prior Supreme Court precedents on which the district court relied as involving redistricting processes in which states retained a significant role, rather than being cut out of the process in the way that Arizona voters have done. On the impact on this case of the Clause-implementing federal law, the legislature’s filing contended that it has no bearing on this controversy because it deals only with the default rules that apply when a state’s redistricting process is deadlocked following a census.

The redistricting commission’s merits brief opens with a verbal attack on “partisan gerrymandering,” contending that it ha resulted in “increased alienation of voters, as the electorate perceives that legislators place their own interests ahead of those of the true sovereigns” — that is, the people themselves. The brief also has strong praise for “direct democracy,” and traces it all the way back to the Founders’ generation.

Moving on to the issues the Court will be reviewing, the panel’s brief cited two arguments against “standing” for the Arizona legislature to sue: first, that the lawmakers’ “real claim” is against the people of Arizona, the very source of creation of the legislature itself, and the lawmakers are not entitled to challenge how the people allocate lawmaking power; and, second, the lawmakers are claiming “only an abstract dilution of institutional power rather than the concrete and personal injury necessary to establish standing.”

On the Elections Clause question, the commission’s brief contended that it was designed to give the people of America influence over the national government, “not to entrench state legislators’ privileges.” The Clause, it added, was designed by the Framers to “ensure that the House of Representatives remained closely bound to the people, while also preventing the states from impairing the national government.”

The brief also contended that the Supreme Court’s precedents have supported “the power of the people to regulate congressional elections.”

On the implementing law question, the commission’s brief argued that its explicit purpose was “to permit redistricting decisions to be made by voter initiative.” That was what Congress definitely had in mind in passing the first version of that law in 1911, the brief argued.

The federal government has stepped into the Arizona case to defend the national interest in “the question of the popular initiative’s validity,” which it said may depend upon how the Court interprets the implementing law. It also asserted an interest in the legislative “standing” issue, which it said is often litigated by the federal government in suits against government officials.

The government’s merits brief first argued that the legislature did not have the legal right, under Article III, to file its lawsuit. The injury it claims, of “usurpation” of its authority, is not a genuine injury because “nothing appears to prevent the Arizona legislature from enacting its own districting legislation.” The lawmakers, it surmised, were arguing in effect that the Arizona secretary of state “would disregard any future map drafted by the legislature in favor of one promulgated by the commission.” That, the government asserted, is only a theoretical injury, and is speculative at best.

Offering a second argument against legislative standing here, the federal brief contended that the state constitution does not appear to give the legislature an interest in what the secretary of state would do once a commission-drawn set of maps had been completed. The legislature might be allowed to sue in state court to make its claim, the brief suggested.

On the Elections Clause issue, the government urged the Court, if it reached the merits, to rule that such a commission may validly draw new districts for the House seats. That is reinforced, it added, by the implementing law, which respects whatever lawmaking process is followed under state law.

The Arizona legislature has drawn the amicus support of the National Conference of State Legislatures, and of a private advocacy group that supports “free and fair elections” — the Coolidge-Reagan Foundation. The experiment enacted in Arizona has the support of thirteen states, election law experts, government reform advocacy groups, historians, members of Congress, former governors, and the California independent redistricting commission set up in that state by voter-approved ballot measure.

Current Relists

Conference of November 16, 2018

Andersen v. Planned Parenthood of Kansas and Mid-Missouri Whether the provisions of the Medicaid Act that require participating states to include in their plans the ability of eligible individuals to obtain services from any “qualified” provider, 42 U.S.C. § 1396a(a)(23), but grant states broad authority to exclude providers for violating state or federal requirements, 42 U.S.C. § 1396a(p), indicate that Congress clearly and unambiguously intended to create an implied private right of action to challenge a state’s determination that a provider is not “qualified” under the applicable state regulations.

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Fleck v. Wetch (1) Whether it violates the First Amendment for state law to presume that the petitioner consents to subsidizing non-chargeable speech by the group he is compelled to fund (an “opt-out” rule), as opposed to an “opt-in” rule whereby the petitioner must affirmatively consent to subsidizing such speech; and (2) whether Keller v. State Bar of California and Lathrop v. Donohue should be overruled insofar as they permit the state to force the petitioner to join a trade association he opposes as a condition of earning a living in his chosen profession.

Major Cases

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.